AER’s main objective is to develop and improve the most suitable framework for private and commercial radio activity. AER constantly follows EU actions in the fields of media, telecommunications and private radio transmission, in order to contribute, enrich and develop the radio sector.

AER therefore thanks the High Level Group on Media Freedom and Pluralism for the possibility to present realities commercial radios across Europe are confronted with and welcomes the possibility to comment on its Independent Report (hereinafter the HLG Report) .

I. Introduction

As AER represents commercially funded radios, it feels it cannot comment on all recommendations set in the HLG Report and will focus on certain points raised in this report.

Before commenting on the HLG Report, AER would also like to recall some key points for commercially funded radios:
– Commercial radio is a good example of successful media pluralism. Each country has its own media and radio landscape, depending on various local factors (which can be of historical, cultural, or political nature), but all countries in Europe have a range of stations with different owners offering a wide spectrum of content to the audience. Commercially funded radios evolve in highly competitive environments, not only with public broadcasters or community radios, but, first and foremost, with privately owned and commercially funded radios . Their programmes encompass, broadly speaking, all possible formats, from debates to music-only
– Radio connects people. It is the most intimate medium, and has been so for the past 50 years at least, being ubiquitous, mobile, simple-to-use and free-to-air. These features enable our audience to cultivate a personal relationship with our programmes, our editors, our DJs, our hosts, and our brands
– Radio is trusted. As shown in the last Standard Eurobarometer Survey of Autumn 2011 (EB76). The overwhelming majority of commercially funded radios are non-politically affiliated, and have the freedoms to deliver editorial information, to express opinions and to provide a platform for the public expression of the opinions of their listeners

II. Comments on the HLG Recommendations:

Recommendation 1:The EU should be considered competent to act to protect media freedom and pluralism at State level in order to guarantee the substance of the rights granted in the Treaties to the EU citizens, in particular the rights of free movement and to representative democracy. The link between media freedom and pluralism and EU democracy, in particular, justifies a more extensive competence of the EU with respect to these fundamental rights than to others enshrined in the Charter of Fundamental Rights.

In this context, AER would first like to recall an essential point when considering radio, and especially commercially funded radio: it has local, regional or, at the most, national audiences.

Radio’s regulation should reflect this. The regulation of media, being both cultural and economic at the same time, still lies mainly within the hands of each Member State. Given its influential role towards public opinion, radio is a very tightly regulated medium at national level, under all aspects (formats, quotas in content, advertising, right of reply, basic identification, masthead requirements, etc.). Its regulation, and hence the many mandatory elements a radio has to fulfill in order to be authorised to broadcast content, is tailored to its audience: it needs to be decided at the same level.

Furthermore, AER believes that the EU is already competent to act in a number of areas which are paramount to preserve radio’s freedom and pluralism, especially thanks to competition / State aid law – this is for instance the case regarding access to spectrum and competition with public broadcasting:
– In order to maintain pluralism, access to broadcast means remains paramount. Broadcasters on radio provide useful and crucial information: in the event of natural disasters, emergencies and extraordinary situations, broadcast radio is the first – and possibly the only remaining – tool to inform, advise or direct the public. It is therefore essential to preserve radio’s privileged access to band II, band III and band L .In order to sustain investments, and ensure radios’ stability: if a commercially funded radio has not breached any fundamental rights’ principle, there should be the possibility to automatically renew its licence to access airwaves. In any case, procedures to renew radio licences should be fair as set in the Telecom Package
– Commercial radio offers an alternative perspective from public broadcasters. The largest audience market shares are often still obtained by public broadcasters in most EU countries. So, commercial radio is an essential force in ensuring pluralism. However, they evolve in the same context as public broadcasters, without any help from their governments, while competing for the same targets: listening hours and, frequently, advertising or commercial revenues. This unbalanced situation impacts and threatens commercial radio stations. Regulation and ex-ante evaluation of new public broadcasting sector services, although required by the European Commission’s 2009 Broadcasting Communication , is still not present in all European countries (e.g. France).

AER firmly believes that EU interventions in media regulation should therefore only take place to preserve competition / State aid law or in cases of serious breaches to EU fundamental rights which is, in AER’s understanding, what the HLG Report means by a competence to act at “State level” – i.e., the possibility to act against a Member State in cases of serious breaches to the Treaty of the European Union, with the so called “article 7” procedure. The broadcasting sector is already the most regulated media sector; so any additional state regulatory measure could hamper radio development, and thereby media pluralism. No new EU regulation is therefore necessary in this field – rather a better implementation of existing texts.

Recommendation 2:To reinforce European values of freedom and pluralism, the EU should designate, in the work programme and funding of the European fundamental rights agency, a monitoring role of national-level freedom and pluralism of the media. The agency would then issue regular reports about any risks to the freedom and pluralism of the media in any part of the EU. The European Parliament could then discuss the contents of these reports and adopt resolutions or make suggestions for measures to be taken.

Recommendation 3:As an alternative to the mechanism suggested in the previous recommendation, the EU could establish an independent monitoring centre, ideally as part of academia, which would be partially funded by the EU but would be fully independent in its activities.

AER can agree with the need to assess the level of freedom and pluralism in the media, but this should be done at national level. As mentioned before, commercial radio is aimed to local, regional and, sometimes, national audiences. Each country therefore has an adapted manner to tackle the question of pluralism and freedom of radio. AER would like to recall what it had mentioned in 2009 in its reply to the European Commission public consultation on the Media Pluralism Monitor: it “understands the creation of the media pluralism monitor as a tool providing signals calling for further much more thorough investigations at Member State level of the potentially dangerous situations. It should not be considered, in any case, as a tool to compare the situation of media pluralism between EU Member States.”

Moreover, the evaluation of media pluralism and freedom at national level should not lead to overburden with regulations the broadcasting sector, which is the most regulated area in the media sector.

As mentioned, regulatory actions on media pluralism and freedom are to be taken at national level to prove useful, except in areas where there are existing EU regulatory instruments and useful safeguards (i.e. competition law, with, e.g., Broadcasting Communication and Telecom Package).

Recommendation 4: All EU countries should have independent media councils with a politically and culturally balanced and socially diverse membership. Nominations to them should be transparent, with built-in checks and balances. Such bodies would have competences to investigate complaints, much like a media ombudsman, and have revealed ownership details, declarations of conflicts of interest, etc. Media councils should have real enforcement powers, such as the imposition of fines, orders for printed or broadcast apologies, or removal of journalistic status. The national media councils should follow a set of European-wide standards and be monitored by the Commission to ensure that they comply with European values.

AER would like to recall that, for the broadcasting sector, all EU countries have national regulatory authorities, who, in most cases, already assess their compliance with the rules set in the licence necessary to access spectrum. Besides, self-regulation for advertising exists in almost all EU Member States. To this should be added the fact that competition authorities can also investigate media outlets at national level and that, in many EU Member States, there should be mechanisms (mostly with a dedicated entity) in place to control the creation of new services by public broadcasting organisations – although required by the 2009 Broadcasting Communication, it is not the case for a substantial amount of EU Member States.

Most of these mechanisms include adequate levels of sanction – although the mechanisms in place to control the creation of new services by public broadcasting organisations show a certain lack of enforcement.

Although AER does not oppose to a high level of transparency, it does not support the creation of new entities at national level, as this could overburden the sector. Once again, commercial radio is aimed to local, regional and, sometimes, national audiences. Each country therefore has an adapted manner to tackle the question of pluralism and freedom of radio. A series of European-wide standards would be very difficult, if not impossible, to draft without hindering national situations. In a number of areas and as mentioned in comments to the previous recommendations, the European Commission already controls the correct implementation of EU rules which serve media pluralism. In the light of the considerations mentioned above, AER does not see the necessity to expand the latter.

Recommendation 5:For improving the functioning of the Single Market, further harmonisation of EU legislation would be of great benefit. Currently, the existence of divergences between national rules can lead to distortions in the framework of cross-border media activities, especially in the online world. It would be particularly important to adopt minimum harmonisation rules covering cross-border media activities on areas such as libel laws or data protection.

As mentioned in the comment to Recommendation 1, radio, and in particular commercial radio, has local, regional or, at the most, national audiences. This is due for one part to technical reasons: to a very large extent, radio’s audience still comes from terrestrial broadcasting of its programmes – these are free-to-air and it is evaluated that there is an average of 4 to 5 radio receivers by households across the EU (and online listening is still a miniscule amount of total listening figures). Broadcasters on radio provide useful and crucial information: in the event of natural disasters, emergencies and extraordinary situations, broadcast radio is the first – and possibly the only remaining – tool to inform, advise or direct the public. Terrestrial broadcasting is national at the most, as operators are required to obtain a licence to use part of the spectrum; this licence in turn depends on criteria reflecting the national landscape, culture, history. The fact that commercial radio’s audience is mostly local or regional, is even more due to its content: commercial radio’s audience seeks for the news on the local traffic jams, the local weather, the local politicians delivered by their local radio DJs in their local dialect. The reason why radios are developing activities online is to maintain contact with their audience. However, this does not change the nature of commercial radio: an essentially local actor.

Radio’s regulation should reflect this. The regulation of media, being both cultural and economic at the same time, still lies mainly within the hands of each Member State. Given its influential role towards public opinion, the broadcasting sector is already the most regulated media sector – radio is a very tightly regulated medium at national level, under all aspects (formats, quotas in content, advertising, right of reply, basic identification, masthead requirements, etc.). Its regulation, and hence the many mandatory elements a radio has to fulfill in order to be authorised to broadcast content, is tailored to its audience: it needs to be decided at the same level.

From this perspective, AER would like to underline that it would kindly suggest modifying a statement contained in page 22 of the HLG report: “Mutual interpenetration mean that how any one state regulates media is likely to impact on the situation in other states”. This is certainly not the case for radio, as it is a local, regional or national medium. Besides, if radio is mostly broadcast, it is only audio, and not audiovisual. Hence, the rules applying to radio cannot be automatically considered as the same for the television sector by the mere fact that the latter is also still mainly broadcast. So, AER would strongly support the following statement: “if a regulator were to cover all media, it should be specified that its role has to be different according to each kind of media”. As this was one of the key points presented by AER to the HLG, it believes that this statement is understood as also reflecting the specificities of radio. Once again, the latter also make that radio regulators exist at national level.

Regarding specifically EU regulation on data protection, AER believes that the EU is currently undertaking a very ambitious review of the 1995 Directive regulating the sector. Finally, regarding libel laws, AER would underline the necessity to adopt clear rules for cross-border cases ensuring that media only have to abide by the libel rules in place in their country of origin – i.e., the country where the licence is obtained for a radio. This could be done by a review of the Rome II Regulation, as shown in the related European Parliament own-initiative Report of May 2012 – its implementation is due to be assessed by the end of 2013 .

Recommendation 6: A network of national audio-visual regulatory authorities should be created, on the model of the one created by the electronic communications framework. It would help in sharing common good practices and set quality standards. All regulators should be independent, with appointments being made in a transparent manner, with all appropriate checks and balances.

AER believes that the existence of the European Platform for Regulatory Authorities (EPRA) constitutes a good tool to already exchange on good practices and on quality standards. As mentioned, due to the characteristics of radio exposed in comments to previous recommendations, going further than exchanging on quality standards would not be very useful.

Besides, AER agrees with the criteria set for the independence of regulatory authorities. Additionally, AER would like to stress that regulatory bodies should not only regulate, but can also provide incentives for commercially funded radios, recognising their usefulness.

Recommendation 7: National competition authorities need to make (or commission) pro-active regular assessments of individual countries’ media environments and markets, highlighting potential threats to pluralism. At the EU level, there should be pro-active market assessment under competition policy in the form of a sectoral inquiry.

As mentioned in the comments to recommendations 2 and 3, AER can agree with the need to assess the level of freedom and pluralism in the media, but this should be done at national level. However, as also mentioned above, the evaluation of media pluralism and freedom by competition authorities at national level should not lead to overburden with regulations the broadcasting sector, which is the most regulated area in the media sector, unless there are clear threats to competition, as exposed in the plain requirements of the 2009 Broadcasting Communication.

AER has difficulty understanding the necessity to involve a number of different entities for the assessment of media pluralism and media freedom at national level.

Recommendation 8:European and national competition authorities should take into account the specific value of media pluralism in the enforcement of competition rules. They should also take into account the increasing merging of different channels of communication and media access in the definition of the relevant markets. In addition, the High Level Group calls upon the European and national competition authorities to monitor with particular attention, under competition policy, new developments in the online access to information. The dominant position held by some network access providers or internet information providers should be allowed to restrict freedom and pluralism. An open and non-discriminatory access to information by all citizens must be protected in the online sphere, if necessary by making use of competition law and / or enforcing a principle of network and net neutrality.

As mentioned in the comments to recommendation 5, radio is still mainly a broadcast medium and will remain so for the foreseeable future – even in the case of hybrid radio, combining broadcast and online features, broadcasting is the backbone of the infrastructure, as it is very robust. Broadcasters on radio provide useful and crucial information: in the event of natural disasters, emergencies and extraordinary situations, broadcast radio is the first – and possibly the only remaining – tool to inform, advise or direct the public. It also enables to avoid overburdening mobile networks. It would therefore be extremely important to ensure that as many “converged” devices as possible offer the possibility to receive broadcast radio. For instance, it is essential that, when broadcast chips are present on a device, their use is enabled.

Besides, and as mentioned in the comment to recommendation 1, radio, and in particular commercial radio, has local, regional or, at the most, national audiences. AER welcomes the point recalled by the HLG Report page 23: “most media markets are still essentially national, strongly delineated by national boundaries”. For radio, this is still the case online (see comments to recommendation 5).

When radio is listened online, the quality of services provided should be at least equal to broadcasting on-air: uninterrupted transmission of programmes. However, commercially funded radios in Europe are, in their vast majority, SMEs: they are in no position to financially compete for access to the internet with other market players. So, it is crucial for radios that this understanding of net neutrality is applied.

Recommendation 11:Any new regulatory framework must be brought into line with the new reality of a fluid media environment, covering all types of journalistic activities, regardless of the transmission medium.

As mentioned in the comments to recommendation 5, AER would like to underline that radio is targeted at local, regional or, at the most, national audiences, even online. So, its regulation, and hence the many mandatory elements a radio has to fulfill in order to be authorised to broadcast content (or transmitted online), is tailored to its audience: it needs to be decided at the same level.

Recommendation 13:Channels or mechanisms through which media are delivered to the end user should be entirely neutral in their handling of the content. In the case of digital networks, Net Neutrality and the end-to-end principle should be enshrined within EU law.

Please see comments to recommendation 8.

Recommendation 15:Any public funding should only be available for media organisations which publish a code of conduct easily accessible to the public (including on their site).

AER agrees with the need to set strict rules for the provision of public funding.

AER would however like to recall that the radio sector is already submitted to strict legal rules set in the licence to access airwaves on all aspects (formats, quotas in content, right of reply, basic identification, masthead requirements, etc.) for the commercial sector. Alternatively, the public sector has to comply with a remit and strict rules as exposed in the comments to recommendation 16 – it is crucial to ensure a leveled competition between commercial and public radio that the rules set in the comments to recommendation 16 are followed. Besides, implementation of these rules is controlled and enforced by national regulatory authorities in all EU Member States. These rules are complemented by self-regulation for advertising.

These rules are all publicly available. AER therefore does not see the necessity to publish on top of these rules a code of conduct. However, following the rules exposed in the comments to recommendation 16 is paramount.

Recommendation 16:Any public funding to media organisation should be given on the basis of non-discriminatory, objective and transparent criteria which are made in advance to all media.

Member State’s main means to fund media is via state aid / subsidies. AER warmly welcomes this recommendation. It would add that, in particular for public broadcasting, it is essential that the following principles are applied:
1. Clear and meaningful definition of the public service remit by a legal act
2. Market impact assessment prior to an extension of the remit
3. Transparency: separation of public and commercial activities as well as cost allocation to profit centres
4. Independent control mechanism for
– ex-ante evaluation of activities as well as for
– the supervision of entrustment and for
– the evaluation of the financial behaviour
5. Sanctions for breach of competition rules

Recommendation 19:Media literacy should be taught in schools starting at high-school level. The role of media players in a functioning democracy should be critically assessed as part of national curricula, integrated either with civics or social studies.

AER fully agrees with this recommendation. The teaching of media literacy should however start earlier than at high-school level.

Recommendation 20:To evaluate the manner in which media consumption patterns are changing, as well as their social impact, comprehensive longitudinal studies are needed at the EU level. More broadly, the EU should provide sustainable funding for academic research and studies on the changing media environment, in order to provide a solid academic basis for policy initiatives in this field.

As mentioned in comments to recommendations 1, and given its influential role towards public opinion, radio is a very tightly regulated medium at national level, under all aspects (formats, quotas in content, advertising, right of reply, basic identification, masthead requirements, etc.). Its regulation, and hence the many mandatory elements a radio has to fulfill in order to be authorised to broadcast content, is tailored to its audience: it needs to be decided at the same level – local, regional or national.

Besides, researches and studies on media consumption patterns can indeed be helpful but it should not lead to overburden with regulations the broadcasting sector, which is the most regulated area in the media sector.

Recommendation 24:Compulsory damages following court cases should include an apology and retraction of accusations printed with equal positioning and size of the original defamation, or presented in the same time slot in the case of radio or TV programmes. In addition to this and to a legally-imposed right of reply, it should become accepted as responsible practice among news media to also publish retractions and corrections of wrong and unverified information on the simple request of citizens providing justification to the contrary. Any such retractions and correction should be published with the same relevance as the original coverage when the correction of the potential harm done by such false information so justifies. Any public funding should be conditional on the inclusion of such provisions in the code of conduct of the media organisation.

AER believes that the provisions presented in this recommendation should be decided on a case-by-case basis, depending on the radio national regulatory organisation and / or court decision. Please also see comments to recommendation 15.

Recommendation 25:To ensure that all media organisation follow clearly identifiable codes of conduct and editorial lines, and apply the principles of editorial independence, it should be mandatory for them to make them publicly available, including by publication on their website.

Please see comments to recommendation 15.

Recommendation 26:There should be a provision of state funding for media which are essential for pluralism (including geographical, linguistic, cultural and political pluralism), but are not commercially viable. The state should intervene whenever there is a market failure leading to the under representation of pluralism, which may be considered as a key public good.

AER can agree with this recommendation as long as the principles exposed in the comments to recommendation 16 are respected.

Recommendation 27:Any public ownership of the media should be subject to strict rules prohibiting governmental interference, guaranteeing internal pluralism and placed under the supervision of an independent body representing all stakeholders.

AER warmly welcomes this recommendation and stresses once again the need to respect the principles exposed in the comments to recommendation 16.